Worker argues these actions were 'inconsistent with employment'
A worker recently filed a claim before the Fair Work Commission (FWC) alleging that she was constructively dismissed when her employer removed her access from its systems.
On the other hand, the employer argued that there was no termination since the removal was only a temporary suspension while they were having negotiations.
The worker filed an application before the Commission for a general protections dispute related to her alleged dismissal from her employer, Hendrickson Asia Pacific Pty Ltd. Meanwhile, the employer argued that she was not dismissed.
Complaint to HR director
According to the worker's testimony, on 31 March 2023, she submitted a complaint to the employer's HR director, Janet Kupka, concerning the conduct of Andrew Martin, its vice president of international operations.
In April 2023, the employer informed her that they would hire an external investigator to examine her complaint. After a few months and upon the investigation's end, the management told the worker that her complaint was largely unsubstantiated and inquired about her preferences.
The worker said the decision was not hers to make, expressing her belief that the management valued loyalty and may not wish to work with her following her complaint.
Later that day, the worker felt unwell, and left work. On 22 July 2023, she submitted a medical certificate that covered her absence until 30 July.
Employer removes worker's system access
On 23 July, the worker discovered that her VPN access, which allowed her to work remotely, had been disconnected.
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She said that, based on her prior experience, the employer typically disconnected an employee's VPN access at the end of their final day of employment, which led her to suspect that the company had already decided that she would not return to work.
The employer later informed her that her VPN access had indeed been disconnected on 21 July.
Furthermore, the worker said that the management informed her co-worker that an event that she had been organising was postponed. She expressed surprise at not being consulted on this matter.
After a few days, the worker also found out that the VP, who was the subject of her complaint, did not want her on his team, which she took as implying that she could no longer work for the employer.
She also said that her access to Oracle, Payforce, and Kronos programs, necessary for her work, had been terminated. Additionally, she was asked to provide an update on current workers' compensation claims and recruitment activity, which she said were further indications of an imminent dismissal.
Employer denied termination
On 26 July, the worker's legal representatives addressed a letter to the employer, arguing that the company's actions constituted a breach of her employment contract, resulting in her constructive dismissal.
In response, the company's team said that had been dismissed. They proposed an alteration to her role to accommodate the conflicts arising from the investigation into her complaint.
The proposed restructuring would divide the HR function into two distinct positions: one with a strategic focus, reporting to the VP that the worker reported; and another handling day-to-day tasks such as payroll, general contract management, and related responsibilities.
The employer said the worker would remain in her current role temporarily and assist in designing the HR function's restructure. She would have the option to apply for one or both roles once they were established.
Alternatively, if the worker chose not to continue her employment, the company would provide 19 weeks' pay and up to $5,000 in outplacement services.
It clarified that the company was open to negotiations on either of these options, sparking further exchanges between the legal representatives. Unfortunately, no agreement was reached.
Employer's actions allegedly inconsistent with employment
The worker maintained that she had been dismissed by the employer. She said this was evident when Martin did not want her on his team and that she had to retire or resign.
She argued that the disconnection of her VPN, her work email, and other work platforms were inconsistent with the continuation of her employment. The cancellation of her work event and requests for status reports further supported her claim.
She also said the alternative role offered by the company's legal representatives was not a genuine one, saying that she had already been dismissed by that point.
Meanwhile, the employer said she was never forced to resign, and the company offered her the choice to continue her role or negotiate a separation.
It said the company never took steps to terminate her employment. Her access to email and other systems was temporarily suspended because she was considering leaving and negotiating a separation, but this did not constitute a dismissal.
It said that access would be restored upon her decision to return to work. The company continued to pay her, and she remained an employee.
HRD previously reported about an employee who claimed he was dismissed via a “threatening email,” arguing that the content showed “a clear breakdown of the relationship.” His employer, however, claimed that he had abandoned his position.
In a different case, another worker claimed dismissal when he was removed from the Facebook Messenger group.
Was there constructive dismissal?
In its decision, the Commission found that the management did not expressly state that VP Martin did not want her on his team. “It was [the worker] who raised the notion that Martin might not want to work with her because he valued loyalty. She may have believed that this was the case,” it said.
As for the employer’s restriction of the worker’s access to its systems, the FWC said that “this was not a circumstance indicative of a repudiation of her contract.”
“[She] was not at work. She was on personal leave, supported by a medical certificate valid until 30 July 2023. She did not return to the office after that time,” it said.
“Further, from 20 July 2023, there was a reasonable basis for [the employer] to doubt whether [she] would return to work because she had refused to answer [the management’s] question as to whether she would be able to work with VP Martin.”
It also commented on the negotiations that the parties’ legal teams discussed. “Neither of the alternatives set out in the letters from the company’s lawyer involved a dismissal. The first would see her continuing in her current role – she would be involved in the redesign of human resources, which would occur later. The second involved an agreed separation, not a termination of employment.”
Thus, it said that Hendrickson did not repudiate the worker's contract of employment. “The suspension of access to systems was an understandable intervention in the circumstances,” the Commission said.
“It could and would be reversed if she returned to work. The narrowing of access to the shared drive and the cancellation of the work event that the worker had organised were minor and irrelevant matters.”
“The requirement that [her] work with VP Martin was not unreasonable, and she did not object to it, or indicate that she would not or should not work with him. The evidence does not sustain a conclusion of constructive dismissal,” it said. Consequently, the FWC dismissed her application.